Krikorian v. Dailey

• Decision Date: 08 June 1938
• Citation: 171 Va. 16
• Parties: ANNA KRIKORIAN, EXECUTRIX, ETC. v. THOMAS DAILEY.
• Court: Virginia Supreme Court

Page 16

171 Va. 16

ANNA KRIKORIAN, EXECUTRIX, ETC. v. THOMAS DAILEY.

Supreme Court of Virginia, Wythebille.

June 8, 1938.^*

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. CONTRACTS — Construction — Words and Phrases to Receive Ordinary Construction. — In the construction of contracts, words and phrases should receive primarily that construction which they commonly receive in the ordinary affairs of life.

2. CONTRACTS — Construction — Province Lies Wholly within Domain of Ambiguity. — The province of construction lies wholly within the domain of ambiguity.

3. CONTRACTS — Construction — Unambiguous Contract. — Where a written contract is clear and unambiguous on its face, it is the duty of the court to construe it.

4. CONTRACTS — Construction — Purpose of Covenant of Greatest Importance. — In the construction of contracts, the academic definition of words is often important, but more important still is the purpose of the covenant.

5. CONTRACTS — Construction — Ascertaining Intention. — To ascertain the intent of the parties to a contract, reference must be had to the subject-matter, the situation of the parties, their aims, purposes and the circumstances surrounding its execution.

6. WORDS AND PHRASES — Confectionery. — A confectionery is defined as "a place where confections are made or kept."

7. JUDICIAL NOTICE — Matters of Common Knowledge — Sale by Drug Stores of Things Other than Drugs. — It is a matter of common knowledge that a large part of the business of drug stores today consists of the sale of things other than drugs, and that they are no longer merely chemists' shops.

8. CONTRACTS — Construction — Courts Should Consider Substance of Things. — In the construction of contracts courts should look to the substance of things.

9. LANDLORD AND TENANT — Action for Breach of Restrictive Covenant — Questions of Law and Fact — Whether Covenant Was Broken — Case at Bar. — In the instant case, an action for breach of restrictive covenants in a lease, defendant's decedent, owner of two adjacent properties, stipulated in the lease made with plaintiff that during the term of the lease the other property would not be leased for a confectionery store, plaintiff being engaged in the conduct of such a store on the leased premises. Thereafter the other property was leased for a drug store, in which were sold not only drugs but practically all those things sold by plaintiff.

Held: That whether or not the covenant had been broken was a jury question.

10. ESTOPPEL — By Statements — Plaintiff Bound by Own Statements Intelligently Made. — A plaintiff is bound by his own statements provided that they are intelligently made.

11. PARTNERSHIP — Questions of Law and Fact — Existence of Partnership — Case at Bar. — In the instant case, an action for breach of a covenant in a lease that adjacent property also owned by the lessor would not be leased for the purpose of conducting a competing business, defendant contended that plaintiff was bound by his own testimony that his wife was a partner in the business, and that the court should have so instructed the jury. Plaintiff did at times state that he and his wife were partners, but from his entire testimony it was doubtful if he understood what was meant by that term, or had any conception of the elements of a partnership.

Held: That, under the circumstances, the question as to whether or not the business was a partnership business was for the jury.

12. LANDLORD AND TENANT — Action for Breach of Restrictive Covenant — Instructions — Failure of Court to Construe Lease — Case at Bar. — In the instant case, an action for breach of a covenant in a lease that adjacent property also owned by the lessor would not be leased for a confectionery store, plaintiff being engaged in the conduct of such a store on the leased premises, an instruction for plaintiff which told the jury that the covenant was broken if a business substantially similar to plaintiff's was conducted on the adjacent property, was objected to on the ground that the court should have construed the lease.

Held: No error.

13. DAMAGES — Profits — When Recoverable. — Profits may only be recovered as damages where they can be ascertained with reasonable certainty.

14. CONTRACTS — Breach — Damages Recoverable. — Damages recoverable for breach of contract are such as fairly, reasonably and naturally arise in the ordinary course of things from such breach.

15. DAMAGES — Profits — Not Recoverable as Damages in Case of New Business. — If a business is new and without background, there is no base from which prospective profits may be determined so as to permit their recovery as damages for breach of a contract causing the destruction of such business.

16. DAMAGES — Profits — In Case of Destruction of Established and Successful Business. — Profits from a business long established and continuously successful may be used in determining damages suffered from its destruction.

17. DAMAGES — Profits — Need Not Be Susceptible of Calculation with Mathematical Exactness. — Prospective profits need not be susceptible of calculation with mathematical exactness to permit their recovery as damages, provided there is a sufficient foundation for a rational conclusion.

18. WITNESSES — Corroboration — Section 6209 of the Code of 1936 — Requisites of Corroborative Evidence. — Under section 6209 of the Code of 1936, providing that in actions by or against a party incapable of testifying, or by or against a trustee, executor, administrator, etc., no decree shall be rendered in favor of an adverse or interested party on his uncorroborated testimony, it is not necessary that the corroborating evidence should be of itself sufficient to support a verdict, but it must, of its own strength, tend to support some essential allegation.

19. WITNESSES — Corroboration — Section 6209 of the Code of 1936 — Such Corroboration as Confirms and Strengthens Jury's Belief in Testimony. — Section 6209 of the Code of 1936, providing that in actions by or against a party incapable of testifying, or by or against a trustee, executor, administrator, etc., no decree shall be rendered in favor of an adverse or interested party on his uncorroborated testimony, only requires that there should be such corroboration as would confirm and strengthen the belief of the jury in the testimony of such adverse witnesses.

20. LANDLORD AND TENANT — Action for Beach of Restrictive Covenant — Sufficiency of Corroboration of Lessee — Case at Bar. — In the instant case, an action for breach of a covenant in a lease that adjoining property also owned by the lessor would not be leased for the purpose of conducting a competing business, defendant contended that the lessor having died no judgment could rest on plaintiff's uncorroborated testimony. Plaintiff testified that his business had been continuously prosperous until the adjoining property was leased in violation of the covenant, and that thereafter his business fell away and he was unable to pay rent and was dispossessed. Books of original entry showing the volume of sales before and after competition set in were also introduced in evidence.

Held: That plaintiff's evidence had been sufficiently confirmed and strengthened.

21. LANDLORD AND TENANT — Action for Breach of Restrictive Covenant — Admissibility in Evidence of Letters between Lessee's Counsel and Lessor — Case at Bar. — In the instant case, an action for breach of restrictive covenants in a lease, defendant's decedent, owner of two adjacent properties, stipulated in the lease made with plaintiff that during the term of the lease the other property would not be leased for a confectionery store, plaintiff being engaged in the conduct of such a store on the leased premises. Counsel for plaintiff wrote to defendant saying that he understood that a drug store and confectionery was to be opened contrary to the terms of the lease, and received a reply saying that a drug store and not a confectionery would be opened, to which he answered that a modern drug store was also a confectionery store. Objection was made to the introduction of these letters by defendant's counsel.

Held: That the letters were competent to meet any claim of estoppel or consent.

22. EVIDENCE — Admission — Harmless Error — Letters between Parties. — Where the respective contentions of the parties were abundantly proven to have been made, by other evidence in the record tendered on behalf of both plaintiff and defendant, if there was error in the admission of letters between plaintiff's counsel and defendant, setting forth such contentions, it was harmless error.

23. LANDLORD AND TENANT — Action for Breach of Restrictive Covenant — Instructions — Failure of Plaintiff to Perform Agreement — Case at Bar. — In the instant case, an action for breach of restrictive covenants contained in a lease, defendant requested an instruction to the effect that plaintiff must show that he complied with and performed the agreement on his part, and that if he was ejected for non-payment of rent then he could not recover. The court refused this instruction and substituted one to the effect that plaintiff must show that he complied with and performed the agreement on his part unless the jury believed from the evidence that defendant prevented plaintiff from performing the agreement.

Held: That the instruction as given by the court was correct, since, if defendant broke his covenant and thereby made the non-payment of rent unavoidable, he could not complain of results which might have been expected to follow.

24. LANDLORD AND TENANT — Action for Breach of Restrictive Covenant — Damages — Verdict for $4,750 Not Excessive — Case at Bar. — In the instant case, an action for breach of a covenant in a lease not to lease adjacent property for a confectionery store, plaintiff being engaged in the conduct of such a store on the leased premises, plaintiff testified that his business had been...